The U.S. Supreme Court recently heard oral arguments in a case that could clarify when private-sector employers may pay differential pay to reservists without risking criminal liability.
Differential pay—also commonly called top-up pay—is the difference between a service member’s civilian pay, which is usually higher, and their military pay, which is usually lower, Mark Girouard, an attorney with Nilan Johnson Lewis in Minneapolis, told SHRM.
Federal employers must provide differential pay for certain kinds of service obligations, he noted. Private-sector employers don’t have to provide differential pay, but many do voluntarily.
In the brief that helped persuade the Supreme Court to review the case, the petitioner said that more than 1 million people serve in the Armed Services’ Reserve.
The petitioner was called to active duty from his air traffic controller position with the Federal Aviation Administration (FAA) several times from 2012 to 2014 to perform military service in the U.S. Coast Guard. While the U.S. Department of Transportation (DOT) granted differential pay for much of the time the petitioner served, it denied top-up pay for 14 months of consensual active-duty military service.
The petitioner challenged the failure to provide differential pay as a violation of the Uniformed Services Employment and Reemployment Rights Act but lost his challenge before the U.S. Merit Systems Protection Board and then before the U.S. Court of Appeals for the Federal...
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